Dáil Éireann díospóireacht -
Thursday, 27 Jun 1963

Vol. 203 No. 13

Local Government (Planning and Development) Bill, 1962—Committee Stage (Resumed).

Debate resumed on the following amendment:

In subsection (5), page 25, line 41, to delete "completed" and substitute "commenced".—Deputy Jones.

Minister for Local Government (Mr. Blaney)

When we left off yesterday afternoon I had been developing the point that this amendment might be best left out and the subsection allowed to stand as it is. I feel the situation is that the question of revoking or modifying permission during the course of development of, for instance, a large housing estate, is something which can happen, although on the surface it would appear to be a rather unusual situation to envisage and the power contained in the subsection is something that could become very necessary, though I do agree it would arise only in very few cases.

I can see where, for instance, a large tract of land might have been taken over, an overall plan drawn up, permission granted for it and the development would have been taking place in stages over a number of years. During the passage of those years, certain new circumstances could emerge, such as the possibility of a new roadway being linked up with the road system in the new estate at a time when the existing roads in the new estate might not be completed. It might be desirable that the alignment of a roadway in the estate should be changed. Yet, according to the permission granted, the roadway should go in a particular way which we now find does not really suit.

At that stage, a revocation of the permission to put the roadway through in its original form would be desirable and, therefore, a modification of the original permission would be sought. If this should happen, I would point out that compensation would be payable for any loss or damage or consequent loss that might occur. In that way, we would hope not only to satisfy to the greatest possible degree the developer and ensure as far as possible that no loss accrued but the modification of the plan originally granted, maybe quite a number of years before, would bring about a better lay-out, a better planning of the roadway system, for instance. It could be for other reasons of a somewhat similar nature. I merely take that point of the lay-out of the alignment of the roadway as a type of point that could arise.

We shall have to keep in mind, even in the development of a large estate for which planning permission has already been granted—a type of development we wish to see and have encouraged—that this business of planning is something that we know cannot be inflexible. The passage of time will bring about changes in many respects that will make it desirable that a change might be necessary in a plan already approved. Indeed, I think the whole spirit of this new measure is in the direction of greater flexibility.

We might also look at the present situation and the present planning laws which to a large degree have failed to do their job because of the fact that, indeed, they are inflexible if put into operation in their full force. Therefore, the terms and the powers sought in this subsection are not out of line with our general way of thinking in regard to planning in the future. In fact, they are in keeping with it. It is for that reason and for the types of cases I mention that we feel it would be desirable to retain the power of this subsection and to ask that the amendment be not carried.

Mr. Jones

The Minister is justifying here interference with the type of work which a developer may embark upon but has not completed. It is easy to envisage, when this Bill is enacted, the attention that will be focussed on the various facets of this legislation. If a person makes a proposition to the planning authority, if he submits plans for the development of an estate which he has acquired and has gone to the rounds of preparing plans for this development, surely we are entitled to expect that the planning authority who originally made the plan for the area in which the estate stands would have had in mind, through their technical experts, the type of development they would envisage would be carried out in any portion of their area whether this should be residential, industrial or even from the point of view of amenity area? Having done that, having deposited their plan in this regard, and the register which goes with it, indicating to people the type of development that is envisaged in any particular area, their minds would be focussed on this problem.

Now, the individual, accepting the limitations incorporated in the development plan for the area, acquires a property. He submits his proposals to the planning authority. Having had the opportunity of examining them, the planning authority give him permission to carry out the development on which he proposes to embark. He may have engaged architects, planning consultants, even landscape experts, in this matter and involved himself in a great deal of cost. He proceeds to do this work. Anybody who proceeds in that type of development certainly sells the end product to the people. He intends to sell the property, too, in the light of the finished whole—not in part. It is absolutely unreasonable to expect that, when this scheme has been embarked on, the planning authority can change its mind in the middle of the operation and can say to that developer at that stage : "You must stop. We have changed our minds. We believe something else will be done in this area or we are going to change our minds in regard to the development of this area."

The Minister says at the moment that compensation will be paid. The Minister will indicate the section under which the compensation will be paid. I wonder if, in contemplating this matter, he has thought, equally so, of the people who have been induced to buy an interest in portion of this property, believing they are going to a certain type of residential area or they are going to live in an area that is about to be developed in the way in which it was originally planned? What type of consequential laws can there be for these people? It is only fair and reasonable that the planning authority should in these instances, with their expert advisers, be able to say with finality what type of development will go into any particular area.

The Minister mentions the type of alignment of a road. Surely he does not envisage in future planning and development under this Bill, when enacted, that a road or street or any other such proposal would be allowed which would not conform from the beginning to the highest standards of planning? It is hardly reasonable to think that roads being constructed in modern conditions of planning estates, and particularly having regard to this Bill when enacted, would be so constructed as to have to be aligned at a later date.

It is only fair and reasonable to suggest, if the planning authority decide to have a look again at this, that before the actual development has commenced is the time for the planning authority to say: "You may not embark on this. We have looked at it again and we have decided that the type of development you have in mind cannot be undertaken." It is totally unreasonable, after the development has been partially done, to hamstring it by proceeding to stay the final execution of the work, which had been planned by the developer with the assistance of his technical experts and approved by the planning authority. We suggest, therefore, that the power of modifying or revoking should be used before the work has commenced, and we say that only with the gravest misgivings.

The Minister has available to him the results of study courses and the advantage of seeing planning developments abroad. Yet we have here a section which interferes in a big way with the rights of the individual. This is one of the sections which we, on this side of the House, find really obnoxious. The appeal at all stages is to the Minister and the ordinary legal processes of protection are not available. For that reason we are gravely opposed to this type of legislation and this interference with the rights of the individual.

Mr. Clinton

I believe this is an extremely fair and reasonable amendment. I am with the Minister when he says that planning should have flexibility. In my experience, I have come across numerous instances where such flexibility would have been most desirable. I can see only one case where this type of section could perhaps be useful, but I can see many other ways of dealing with it. If development goes on for a period of 12 or 15 years, as I have seen happen on many occasions in County Dublin, certainly many things can happen in the course of that period to change people's minds on what might be desirable development. There should be both a starting and finishing time for any development. The lack of it has caused endless trouble in County Dublin.

If a developer comes along with a reasonable proposition to be completed within a reasonable time—say, within a period of five or even seven years—I think it is reasonable that the planning authority should be able to make up its mind for a period of five or seven years ahead. A developer should not be allowed to proceed halfway, doing his job reasonably, and then be told that the planning authority have changed their mind. You will never get the confidence necessary to induce people to undertake large-scale development if interference of that kind is going to take place. While our experience in County Dublin with numerous developers has not been happy, I still say they are entitled to a minimum degree of security, and that is what this amendment seeks.

Mr. P. O'Donnell

I should like to appeal to the Minister to accept this amendment, which is a very reasonable one. We have now set up town planning on a very comprehensive scale. The planning authority will have at their disposal the finest experts procurable. They have had the advantage over the past 20 years of studying planning not only in this country and Europe but also in the United States of America. It is but reasonable that we should expect that this Bill, when it becomes an Act, will give the planning authority an opportunity of procuring the very best experts to advise them.

Think of the developer. He has to employ his own planners. He has to submit ab initio plans for the development of a project. Those plans are submitted in turn to the planning authority. There is no time limit within which the planning authority must give a decision under the Bill as it stands. They can consider the matter in detail. They can amend the plans submitted or suggest amendments. They can refuse to sanction the plans in detail or comprehensively. Eventually, supposing they accept the plans and permission is given to an applicant to develop a certain project, one would think that that finalised the matter or, if it did not and if there were any qualms on the part of the planning authority, that they would make these known to the applicant before the project commenced and not wait until the middle of the work and hold up the whole thing by asking the applicant to recast his plans.

The Minister has cited an exceptional case where it might be that the planning authority would like to have another look at the matter. The worst thing any Parliament could ever do is to legislate for the exception. It is a very bad rule indeed. The amendment should be acceptable to the Minister and should be fair to the planning authority. Above all, let us think of the citizen who is the developer, who has gone to the trouble and expense of preparing plans and who finds that after permission is granted and he has gone ahead with the execution of those plans, he is held up in the middle of the work.

It may be that, as the Minister pointed out, the applicant could be compensated. What compensation can he get? Who will measure it? Who can possibly tell the future losses that developer may incur as a result of the changing of the plan? This is very serious and the amendment should be acceptable to the Minister. As a lawyer, I should suggest it should be acceptable and it should be acceptable to a layman. Above all, it should be acceptable to an engineer or an architect who may have to recast the plan. I can see the difficulty. I appeal to the Minister, if he cannot accept the amendment now, to look into the matter again because it is a reasonable and acceptable amendment.

Mr. Blaney

It sounds very simple as the last speakers have put it but we must remember that the ideas of ten years ago are completely out of date in many respects now as regards planning. We are thinking of the development of estates which, possibly through bankruptcy or economic depression when partly completed, are subject to a very long delay before completion of the overall plan development for which permission was given originally.

Mr. P. O'Donnell

Is there no provision whereby, if permission is granted, it can be lapsed?

Mr. Blaney

No. That is one of the points of the situation.

Mr. P. O'Donnell

Could permission be given, subject to the execution of the works within a certain period?

Mr. Blaney

That is something running through my mind while this is being discussed. That is another gap that would be very evident if we do not have the sort of power we are seeking in the subsection itself. Delayed development may have many and varied causes especially in the case of a large area where a plan is drawn up, in the first instance, in a very preliminary way but in a way in which part of it may be built at various stages and ultimately, if the whole of it goes through, it becomes a unified, composite development. In our own experience here around the city, such development has taken, from begining to end, as long as 20 years and with that sort of lapse of time, even in the past when changes were not taking place as rapidly, we learned that such time lapses must be taken into consideration and we must calculate on rapid change in the general circumstance of our time.

To ensure that we are not hamstrung by this Bill as we have been by the present law, the idea of flexibility is introduced. In that way we feel the House should consider the views that I have been expressing. Suppose, 10 years after an estate has been completed, a new roadway is needed. There is nothing at present to prevent the local authority, after the full paraphernalia of the law has been used, from acquiring a roadway right through the estate and knocking down houses that are practically new. The owners would be compensated but it would be knocking down what had been completed.

The point I am making is that in these circumstances the local authority might put up reasons why such a change was considered desirable and yet the estate is not completed except in part. Is it not better that we should say at this stage that we should avoid the additional cost and expense to the developer, in the first instance, of completing something which, when completed, will be knocked down rather than have him go ahead and complete the scheme and then have to pay more compensation when it is eventually knocked down. That situation can, and I have no doubt, would arise.

The House is aware that the Bill proposes that the draft plan as passed by the local authority must be reviewed at least once every five years. We propose to make this review incumbent on local authorities because experience has shown you cannot decide a plan is the final blueprint for ever and always. We must avoid that view. Therefore we brought in the proposal that we have already discussed so that in an overall draft plan from the very start, there is the idea of flexibility, that things will change, that there may be traffic or industrial or economy growth that may call for improvements and extensions of services not even envisaged at present.

For these and many similar reasons, we are providing that plans must be reviewed and the review is not just an exercise but is to be undertaken to see whether changes are desirable as time goes on. The idea that the granting of permission for a plan being the final word, particularly where any large area is concerned, is not sound because that review must take place due to the circumstances I have outlined. Even with the best expert advice we could get in any area, we cannot be expected to foresee the future.

There is another aspect of slow and long drawn out development of fairly large estates. This brings me to a point Deputy O'Donnell introduced by way of question. We know that long drawn out development goes on but there are also long standing permissions which have never been used and may never be used. What do we do about these?

Mr. P. O'Donnell

Put a time limit on them.

Mr. Blaney

If it is conceded that it a problem—and I assert it is—then this is also a problem, and if we are to deal with one effectively, it is essential that we should deal with the other. In order to do that, the House might give further consideration to the terms of this amendment and to what I have said in regard to it, together with the question of the time limit on permissions granted which have not been used or only partially used. It might be well to leave the matter over to the Report Stage and I ask the House to do that as much for the benefit of those pressing the amendment to enable them to see the points of view I have been putting, as to give me an opportunity to see the points of view they have urged.

We must have regard, I think, to the fact that planning is not final. It never can be final. Our experience of the present law is that this type of finality was envisaged, but it just did not work. Any curtailment of the proposals in our new legislation which would result in less flexibility than we think necessary will only have the effect of running counter to the best interests of planning legislation.

On the question of lapsing of planning permission and the possibility of a change being required, a change which would make desirable a modification or revocation of a permission, I am prepared to look into the matter further to see whether we cannot find some method of resolving it, but we must have something on the lines of the provision in the subsection. That does not in any way reflect on the views of those who support this amendment. I shall have another look at both problems to see if we cannot, on Report Stage, satisfy everybody.

Mr. Clinton

When planning permission is granted, it is granted subject to certain conditions. It should be easy to specify that a planning proposal must be started at a certain time and completed by a certain time and, if it were not completed within the specified period, a fresh application would have to be made to extend the period. That would take charge of the likelihood of any very long drawn out development taking place. Planning authorities generally could misuse the power sought in this subsection. Having given authority for a fairly large scale development in an area, they might find subsequently that they had forgotten to make space available for schools, churches, recreation centres, and so on. We are all aware of the obvious defects in planning in the past. The planning authority could then mend their own bad planning by deciding to withdraw the permission given to the developer. A developer who has gone to a considerable amount of expense in the development of an area, in the preparation of plans and in the employment of professional people might find himself at a loss. There are many other ways the Minister could find to deal with the uncertainties he thinks may occur during an extended period.

Mr. P. O'Donnell

I should like to express by appreciation of the Minister's gesture in saying he will look into this matter between now and Report Stage, but the arguments he has offered are, in my opinion, arguments in support of the amendment. The planning authority must every five years review their plans. If the planning authority are about to give a developer permission, it will be given in the light of the review of their own plan. If it is near the end of the five year period, they may postpone a decision, pending the review; in other words, it could not be held up more than 2½ years. If it is development of an estate, such as the Minister suggests, that may be spread out over several years and I do not think it would be unreasonable for the planning authority to hold up sanction in such a case until they would come to their five-year review. The five-year review supports the amendment. In view of that, I would press the Minister again to have a very close scrutiny of this amendment. It is, I think, a democratic amendment.

Mr. Blaney

There is just one other consideration I would ask the House to consider. We are inclined to lose sight of the fact that compensation will have to be paid. The question has been raised as to how one will ascertain the consequential loss to someone prevented from completing the development of a housing estate. I would not regard the calculation of compensation as a stumbling block really. The position is clearly indicated in Section 58. That is the section under which compensation will be paid. It is important to remember that the compensation to be paid might be a very substantial sum because it will have to cover consequential loss. Remember those who seek to have this change made are those who will be liable for compensation. The exercise of this power will be confined within very narrow limits. It might be very costly and the cost will fall on the local planning authority who will make the change, revocation or modification. We must keep that in mind.

Mr. P. O'Donnell

It will be an executive function.

Mr. Blaney

Yes, but the money will still have to be provided.

Mr. P. O'Donnell

If it were reserved, I could appreciate the Minister's point.

Mr. Blaney

The money is reserved, as the Deputy well knows. If no one provides the money, there will not even be the possibility of compensation.

Mr. P. O'Donnell

They can be sued under the Act.

Mr. Blaney

If that is regarded as a serious stumbling block, this is not sacrosanct as far as I am concerned. If Deputies think it should be a reserved function, I shall consider that aspect. We may make it a reserved function so that there will be no doubt about its being unnecessarily or frivolously used.

Mr. Dillon

I understand that every plan will be subject to review every five years.

Mr. Blaney

That is so.

Mr. Dillon

I understand the planning authority has the right to review every five years.

Mr. Blaney

To review the development plan as distinct from the plan, or plans, agreed.

Mr. Dillon

Once the plan is sanctioned, that ordinarily would be irrevocable, unless this subsection were invoked. That alters the position slightly but I do suggest to the Minister two things he might bear in mind when making his review. One is that the number of vast housing schemes which might go on for seven, eight or ten years are likely to be very few. They are certainly a very small minority of schemes which will not be completed within four or five years. It would want to be a very large housing estate the completion of which would extend over ten or 15 years, particularly a housing estate in the hands of a developer. If a municipality were developing a vast housing estate, one could imagine it going on indefinitely but the average developer who invests a large sum of capital in an area of land is not likely willingly to wait ten or 12 years before rents begin rolling in.

Mr. Blaney

Circumstances may prevent him.

Mr. Dillon

All these factors tend to reduce the number of cases of protracted development schemes in the hands of the individual to a relatively small number. As the section stands it would apply to the carrying out of works authorised by a plan. In general principle, it seems to me a reasonable stipulation that the ordinary citizen going about his legitimate business is entitled to know with certainty what the law is so that he may conform to it. It injects into ordinary enterprise a very awkward and difficult element if a man launches out on heavy capital investment and never knows from hour to hour or from day to day when a thunderbolt may be launched at him radically altering the whole basis of his investment.

Lastly, I think I am right in saying that on the question of compensation, there is no appeal to the courts. I would ask the Minister to bear that in mind. Suppose compensation did fall to be payable consequent on the executive act of the county manager or the reserved act of the local authority, the question then arises as to procedure. It is true that the developer has a right to go to arbitration but very often such arbitration raises grave doubts in the mind of the developer as to whether he is getting fair compensation for the disturbance that will result from such an amendment. The procedure for compensation is the existing one, I think, for going to an arbitrator. From that, I understand, there is no appeal. If there were an appeal from the arbitrator's award of compensation to the High Court or some such tribunal, then the developer's confidence in the adequacy of compensation might be greater than it will be if the provisions of the present Bill are left unamended. I would urge on the Minister to bear in mind how small a number the very large developments are in contemplation. It seems a hard thing to use this word "completed" in respect of plans in order to provide for the minimal number of large developments about which the Minister is apprehensive.

Mr. Jones

The Minister has promised to review this between now and Report Stage. I take it the Minister will review it?

Mr. Blaney

Certainly, yes.

Mr. Jones

I take it that he will bear in mind the arguments we have been advancing in regard to it? At this stage might I inquire as to whether the Minister intends to come back with an amendment on Report Stage?

Mr. Blaney

That is a rather difficult subsection to amend. It would mean to change it and I think the minimum change has already been suggested. So that I cannot categorically or with certainty say that I will come back with an amendment. I might as well say that I will agree to the amendment now as to say that. On the other hand, I will not say that I will not come back with an amendment. I want to have another look at it to see if there is any other way to try to meet some of the objections that have been made and at the same time, preserve as far as possible the views I have expressed in regard to the terms of the subsection as it stands; in other words, to try to find something that will go a bit of the way both ways.

Mr. Jones

On that understanding and subject to the right, on Report Stage, if necessary, to put down this amendment again, I ask leave to withdraw the amendment now.

Amendment, by leave, withdrawn.

Mr. Blaney

I move amendment No. 113:

In subsection (7), page 26, line 10, to delete "given." and substitute "given and particulars of it shall be entered in the register."

This amendment, as the House will readily see, is for the purpose of providing that particulars of revocations or modifications shall be entered in the register. If we were to change the subsection which we have been talking about, then this would scarcely follow in the same terms. What I would suggest is that we put the amendment through as it is at the moment. If revocations or modifications are possible, it is no loss to anybody. On the other hand, if we do sort that matter out, we can make the necessary alteration.

Mr. P. O'Donnell

It does not affect the issue.

Mr. Blaney

It does not.

Amendment agreed to.

Question proposed: "That Section 30, as amended, stand part of the Bill."

Mr. Jones

Before passing the section, I want again to put the point of view that we have been expressing generally in regard to the provisions contained in it and with particularity with regard to the amendment we have just discussed. It is entirely unreasonable that the planning authority should, so to speak, have it both ways all the time, that they would compel the citizen in the first instance to comply with the planning regulations and would confine him to the type of development of his property envisaged by the planning authority. That is a limitation of his right which we accept in the interests of good planning but, as I say, we are gravely disturbed by the general tenor of this section, that the planning authority can do things which they do not allow the citizen to do.

Probably, when the Minister has had an opportunity of reviewing the arguments which we have put forward mere this morning and our objections, he will see the point we have been making and the grave objection we have to the type of procedure envisaged in the section. We certainly hope that this section will be closely reviewed by the Minister between now and Report Stage. In the normal way, it is a section that we would vigorously oppose. I do not wish to say any more on it at this stage. We will await the Minister's review.

Question put and agreed to.

SECTION 31.

Mr. Blaney

I move amendment No. 114:—

In subsection (1), page 26, line 13, to delete "on or".

Amendment agreed to.

Mr. Blaney

I move amendment No. 114a:

In subsection (1), page 26, to delete "may" in line 19, to insert "may", before "if" in line 22 and to insert "and shall, if they are directed by the Minister so to do," before "serve" in line 23.

This amendment is intended to give power to the Minister to direct a local authority to serve an enforcement notice under this section. In other words, where a local authority, for any reason, might have fallen down on this matter, if it is brought to the Minister's attention, he will be empowered to require the serving of an enforcement notice by that local authority.

Mr. Jones

I take it that the Minister is taking care of what we might call remissness on the part of the planning authorities in certain instances?

Mr. Blaney

On the odd occasion.

Mr. Jones

I take it that it is on the very odd occasion that the Minister would attempt to give this type of direction to the planning authority. I am sure that the fact that we have been saying from the beginning that this is a reserved function of the local representatives is influencing the Minister. I can see the odd case arising in which the Minister might decide that this type of requirement was necessary. I see no objection to the amendment.

Amendment agreed to.

An Leas-Cheann Comhairle

Amendment No. 115 is cognate with amendment No. 124.

Mr. Jones

I move amendment No. 115:

In subsection (1), page 26, to delete all words after "condition" in line 27 down to and including "land" in line 30.

Paragraph (b) of the subsection provides:

In the foregoing paragraph "the appropriate date" means, in relation to a condition, the date specified in the condition (or in default of being specified in the condition, specified by notice served by the planning authority on the owner and on the occupier of the land) as the latest date for compliance with the condition.

The amendment suggests that the planning authority should serve notice without specifying the date by which the condition must be fulfilled. The deletion of these words would oblige the planning authority to make up their minds at the outset when serving the notice. There does not seem any great sense in giving a planning authority power to specify the date both in the conditions which they may impose and by way of notice as well. For that reason, we suggest that the words should be deleted.

Mr. Blaney

If we accepted this amendment, it would create a very awkward situation in regard to the conditions attaching to planning permission. I wish that what is intended by the amendment were possible but candidly, I do not think it is. It would be practically impossible to specify an exact date for landscaping, for instance. A screen belt of trees might be planted which would ultimately grow 20, 30 or 40 feet high. It would be impossible to specify in advance when the trees would reach 30 feet. There are other conditions that might apply in which it would not make sense to specify the actual date. It is not for any lack of wish on my part that we cannot by pressing a button ensure that these things are done according to conditions laid down in the planning permission. We must take into consideration what is not reasonable, sensible or possible. We cannot say it must be so. Therefore, although I agree with the intention of the amendment, I do not think we could give effect to it.

Mr. Clinton

Again, can this not be taken care of by the conditions of the planning permission? If there were something that could not be decided until a later date, could that not be a condition of the planning permission? If they cannot foresee how long it will take to get landscaping done, or trees grown to a certain height, could they not reserve the right in granting the planning permission? I am afraid of a misuse of the powers under this section. There is always the possibility that they may be unreasonably used and, in my view, this is totally unnecessary in view of the fact that in giving the planning permission, they are entitled to impose certain conditions. That could be one.

Mr. Blaney

We have said this morning that planning permission carries no time limit with it, that is, general planning permission on a particular development, big or small. Since there is no time limit within which it must be done, it is not sensible to put a time limit or date on the actual conditions which are subsidiary to the general permission. If we do not put a time limit—and we are not seeking to—on the general permission, how can we effectively or sensibly have a time limit attaching to the conditions which are really complementary, supplementary or subsidiary to the general permission? We could have a development, a building or a structure and the manner in which the roads or gardens or sewers or walks around it were to be done specified in detail. We say the road must be laid down in a certain way by 31st March, 1965, and yet the development to which the road related might not even have started by 1965 or 1966. Therefore, we would have attaching to the layout of the road to serve the development a date which could be before the date of the general development which was to be done.

Mr. Jones

As already mentioned, the planning authority can lay down conditions. The conditions may not be final inasmuch as they may not impose a time limit. However, in regard to landscaping, there is an accepted rate of growth of flora and there is a pretty good idea of how things will work out. The previous discussion this morning had some bearing on this because the Minister then adverted to the phrase in brackets "or in default of being specified in the conditions". There is covered the point where the condition does not specify what you want but it can be specified by notice served by the planning authority on the owner and on the occupier of land. In other words, if the original conditions which the planning authority impose on the owner of land or the occupier of property are not complied with, notice can be served on that owner at a later stage. Then the person is faced with this difficulty. He can have conditions imposed on him at a later stage. Does the Minister envisage that notice will be served at a later stage?

Mr. Blaney

Yes, but not imposing new conditions. That is probably where we are at cross-purposes. Let me take the provision in the Bill as drafted without the amendment. Permission is granted to somebody to build a house and contained in that permission is a stipulation that drains must be made a certain depth and size within so many feet of the foundation. The house is then built and at some subsequent date, the local planning authority come to know that the drains have not been done as per the conditions of the original permission. It is for that reason that this notice we are talking about is then served, saying that these drains must be completed as specified within six or 12 months, say, by 31st December, 1963. That is what we are proposing and this amendment would cut across that and would have the effect of saying that according to the grant of the original permission, this house must be completed by the end of December, 1963. There is no such stipulation about the completion of the House possible in the general permission. The amendment would not make for good administration. In fact, it would be impossible to insist on things being done this way.

Mr. Jones

At the moment conditions are specified in regard to work that is about to be carried out.

Mr. Blaney

That is right. That is done originally when permission is granted.

Mr. Jones

"The appropriate date" means the date specified in the condition?

Mr. Blaney

Yes.

Mr. Jones

"or in default of being specified in the condition..." In other words, if the planning authority have not given it any thought at all——

Mr. Blaney

It is the date that refers to.

Mr. Jones

It does not apply to the condition?

Mr. Blaney

Not to the condition, only to the date.

Mr. Jones

Then they may serve a notice?

Mr. Blaney

Specifying the date by which this original condition must be fulfilled.

Mr. Jones

"Specified" would have no reference to inserting anything new?

Mr. Blaney

It refers only to what was in the original grant of permission. It does not add to it in any way and the cross-references there are merely to the dates rather than to any change in the conditions.

Mr. Jones

This is more or less to safeguard the planning authority?

Mr. Blaney

No, it is to keep these people honest who agree very freely, when they seek permission, to do this, that and the other: "If you give us permission, we shall do a bit of landscaping, make proper drains and lay out a new road." If they do not comply with the conditions agreed upon, the planning authority may then say: "You must complete this within the next 12 months."

Mr. Jones

In a previous section this morning, there was a provision which could have reference to this inasmuch as the planning authority under the previous section have the power to go in and say even at the commencement: "Stop".

Mr. Blaney

But he may not stop. The big difference is that the planning authority will have to pay for their calling a halt whereas the other fellow will not. He makes money out of it.

Amendment, by leave, withdrawn.

Mr. Blaney

I move amendment No. 115a:

In subsection (2), page 26, lines 32 to 34, to delete all words from "In" in line 32 to "authority" in line 34 and substitute "The planning authority, in deciding whether it is expedient to serve a notice under paragraph (a) of subsection (1) of this section, and the Minister, in deciding whether he will direct the planning authority to serve such a notice,".

An Leas-Cheann Comhairle

This is consequential on amendment No. 114a.

Mr. Blaney

This merely prescribes that the Minister must have regard to the usual criteria of proper planning and development when making any move. It is consequential on amendment No. 114a which has already been agreed.

Amendment agreed to.

An Leas-Cheann Comhairle

Amendment No. 116 is in the name of the Minister, and as amendment No. 117 in the name of Deputy Jones is an alternative, perhaps both could be discussed together.

Mr. Blaney

I move amendment No. 116:

In subsection (2), page 26, line 39, to delete "and any other material considerations" and substitute "and, in a case of non-compliance with a condition, the terms of the permission".

We have already dealt with these words which we are proposing to delete and to substitute other words for them. We have had this matter cropping up in amendments No. 81 and No. 82 and I do not think there is anything to add. Deputy Jones wished to have it this way and the House has agreed to it in other sections.

Mr. Jones

We discussed this matter earlier and the words here run somewhat in line with those we have already discussed.

Amendment agreed to.

Amendment No. 117 not moved.

An Leas-Cheann Comhairle

As amendments No. 118 and No. 143 are cognate, perhaps they could be discussed together.

Mr. Jones

I move amendment No. 118:

In subsection (3), page 26, lines 51 and 52, to delete "require the removal or alteration of any structures".

This section deals with structures built before the appointed day but for which permission had not been obtained originally. Under the subsection, the notice may require the removal or alteration of a structure. On amendment No. 72, there was a lengthy discussion about the type of structure or building which had been erected in default and for which no permission was obtained or sought from authorities who had adopted a resolution bringing town planning, as it existed, into operation. If the authorities were remiss in their approach to town planning, it is hard to blame the individual citizen for being remiss. If the people responsible for town planning in the area under their control did not make plans for their area, it can be appreciated, and I think the Minister does appreciate, that if individuals adopted the same laissez faire approach to the Acts, they can scarcely be blamed. They adopted a resolution and that is all they did without proceeding any further. They incurred no expenditure and made no overall plan of development and in a great many instances the citizen was not aware of the position. It was something new which did not affect him. It was much later when grants became more widespread in relation to the erection of houses and so on that people started to come in contact with the local authorities in regard to obtaining permission for the erection of buildings, because if they sought a grant or loan, they had to comply with certain conditions. We had this type of interim control which was very loose and under it quite an amount of development did take place in built-up areas, which, in the light of modern planning, would be considered very poor. Even at present we can see the effects in the type of alignment which is now taking place in various areas, involving the removal of property for which permission had been given at the time.

The Minister appreciates that this type of structure will have the opportunity of becoming legalised as the local authority can give the permission if the buildings do not offend in a serious way against good planning or town development. The removal or alteration of a structure could arise even where a person had got permission to do certain things but which now would be regarded as not having complied with the permission. That is giving a very wide type of power. I know that there can be compensation but it is a very drastic thing to do. It is to be hoped that the vast majority of these structures will be found not to offend against what is desirable in the planning of the future. It is too wide a power to take against the person whose only fault was that he did not obtain permission to build and therefore should have to remove the building.

Mr. Blaney

That is not a power that we are taking. The fact that somebody has built or will build in the future and has not sought or got permission does not in itself compel the removal of that structure without compensation. If the building is not objectionable, it can and undoubtedly will be given planning permission, even though it was outside the law in the first instance, when built without permission. A great deal more sympathy will probably be extended to such cases than might be if they had come in in the first instance. No one would want that building demolished, unless it offended to such a degree that no other action was possible. That is why I say owners of such buildings are likely to be met with considerable sympathy in their applications. I want to reiterate that, providing their buildings are not offending too grievously, they can apply for and get permission to make legal what is now illegal.

Mr. Clinton

There is one point I want clarified. The Minister says that if owners of buildings or structures wish to, they can apply for permission and have them legalised unless they are very seriously offensive. Who has the giving of that permission?

Mr. Blaney

The planning authority.

Mr. Clinton

Is it the officials?

Mr. Blaney

The same as if you went in with a new plan tomorrow.

Mr. Clinton

The Minister knows quite well that in very many cases planning permission has been withheld by the officials. In many cases, the Minister has reversed that decision because in his wisdom he considered the planning officials were not reasonable in the first instance. I would be afraid the same thing would happen here.

Mr. Blaney

They will have the same right of appeal. That safeguard is still there.

Mr. Clinton

Certainly that provides a certain protection—I would say a considerable protection. There are so many buildings and structures which have been built without proper planning permission that this is a very serious clause.

Mr. Blaney

It is certainly serious but will not weigh too heavily on anyone, for the reason that owners of such buildings will be given full consideration by the planning authority, after which the right of appeal comes in. Unless the buildings are seriously offensive, we will lean fairly heavily in favour of the applicants.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle

Amendments Nos. 119, 128 and 144 are cognate and may be discussed together. I should draw the attention of the House to the fact that there is an error in the text of amendment No. 128. The first line of the amendment should read:

In subsection (4), page 28, line 12, to delete "one month".

Mr. A. Barry

I think the Office has corrected that in all our papers.

Mr. Dillon

It has not corrected it in mine and I am obliged to the Chair for the correction.

Mr. Jones

I move amendment No. 119 :—

In subsection (4), page 26, line 55, to delete "one month" and substitute "six months".

As the subsection stands, we are dealing with the notice which may be served on people who are in default in regard to obtaining permission, or generally in regard to development which is unauthorised. The subsection provides that enforcement shall take place within one month. May I inquire at the outset whether, in this regard, there is an appeal to the Minister?

Mr. Blaney

No.

Mr. Jones

Having got that far, I want to suggest very seriously to the Minister that the period of one month is altogether too short. On previous amendments which dealt with the time within which people must comply, we pointed out sets of circumstances which could arise making it physically impossible for people to comply with the type of notice requiring certain things to be done. One month is a very short time if somebody has to fulfil certain conditions necessary under this subsection. The amendment provides that this period be extended to six months.

Mr. Blaney

Taking into consideration that the offenders in this case will be offenders after these proposals have become law and after the appointed day has elapsed, one cannot have a great deal of sympathy with them. At the same time, we must approach our handling of them thereafter with some reasonableness. Taking into consideration the need for speedy enforcement of correction of infringements that may take place in the future, I believe a period of one month is really something we should have because infringements after the appointed day are not likely to be in respect of the type of unauthorised structure now existing. They are more likely to take the form of hoardings and advertisements which may be so disfiguring for a short period, say, during the holidays, that the idea of the six months' notice as suggested here would not make a great deal of sense.

There is, further on in subsection (5), which is the one after that which it is proposed to amend, the following provision: "If, within the period specified in the enforcement notice or within such extended period as the planning authority may allow...". There, we envisage that if a job is likely to be a major one, the period of a month will be extended by the local planning authority who might themselves have to do the removal if, after the expiry of the date specified in the enforcement notice, it had not been done by the owner.

Mr. Clinton

That is, the officials of the planning authority?

Mr. Blaney

It will be the councillors in this case. The position really will be that the planning authority will be reasonable in regard to the time limit. Planning authorities will not make the situation more difficult for themselves. If the owner could not do the removal in the specified time, the planning authority might have to do it themselves——

Mr. Dillon

And recover costs.

Mr. Blaney

——and seek to recover costs which it might not be possible to recover. They have discretion to allow any time after a month. If we take away the minimum of a month, we take the effective teeth out of it.

Mr. Dillon

Is there no middle course here? The Minister makes a case for the offensive hoarding or panel, and so on, which the planning authority think ought promptly to be removed. Such a hoarding or panel may have been installed only for a seasonal purpose. Therefore, the offender might frustrate the planning authority if he had six months in which to keep it standing. Would the Minister consider differentiating for advertising structures, as defined in the definition section— making it a period of one month if it be an advertising structure within the meaning of the Act and, for all other purposes, a period of six months? It seems unreasonable to give a planning authority power to require a person who has transgressed the planning authority's regulations to restore the land to its original condition or to carry out some pretty comprehensive job in a period of less than six months. I can see force in the Minister's contention that if somebody erects a tawdry panel or unsightly hoarding to catch a seasonal trade it is not unreasonable for the planning authority to say: "Take it down; if you do not do so, we will go in and take it down after a month has elapsed."

Mr. A. Barry

If an offensive hoarding is erected for advertising purposes, power should be given to order its speedy removal.

Mr. Blaney

Advertising hoardings are fairly easily erected and taken down.

Mr. A. Barry

Some of them are very solid.

Mr. Blaney

What we are likely to complain about in the future is something erected at no great cost and which can be removed likewise. A month would be more than would be required: in some cases, a few hours would be all that would be necessary. There is also the hastily run-up shack near the seaside; the caravan in an unauthorised spot, and a disfigurement in itself; the ice-cream van, the "chipper", and so on. If we tried to enumerate them all by name we would undoubtedly omit some. If we attempt to enumerate those things, without doubt others will get away. Therefore, our seeking to differentiate would merely nullify to a large degree what is intended and what I believe is necessary.

Remember, at that stage, these people will have broken the law. They are not just innocent bystanders at that stage after this Bill is enacted. To differentiate between a month, two, three, four, five, six or even 12 months in respect of the removal of an ugly structure should be left at local level. If we tried to do it here I do not think we could do so effectively and we would tear the powers out of the bottom of it.

Mr. Jones

This is completely reserved for the elected members?

Mr. Clinton

I asked the Minister a question about that.

Mr. Blaney

The Deputy asked if the officials would be doing the work and I said that it would be the councillors. I thought the Deputy was being facetious. That is the way his question came to me and that is the way he got it back.

Mr. Clinton

You can easily meet the case where the officials have found somebody offensive to them before they decide to put him in an awkward spot. They might impose conditions involving a little bit more than overtime to have a certain structure removed within a certain unreasonable time. I should be happier if such cases were to be considered by the elected representatives who would pass judgment on what would be a reasonable time. Everybody who has been or is a member of a local authority knows that in many counties so far as local authorities and planning authorities are concerned, the gap between meetings is two months: in most of them, it is at least a month. Surely, we do not envisage that if somebody puts up a rag-tag of a hoarding on the Swords road, the Dublin County Council must assemble in Parnell Square in order that the manager may put up a notice that the person concerned must take down the hoarding within 30 days. There are at least four meetings at which it could be done.

Mr. Blaney

Surely they are committee meetings and not council meetings?

Mr. Clinton

You have at least one council meeting.

Mr. Blaney

That is the point. If you have to add to the 30 days' notice the number of days that have to elapse before a meeting is held, the matter may be allowed to stand for a considerable time. If something objectionable has been slapped up overnight, it is vital that there should be speedy action taken and that it is not allowed to remain until somebody eventually goes in and takes it away.

We are not departing from normal procedure in this. The administration of a Bill such as this is a matter for the executive, that is, the manager. If the manager overdoes things, the council will probably tell him so at subsequent meetings. I think to wait for a meeting is the wrong method of approach in many of these cases. A notice should be served that the premises be removed in two or three months. If the council have grave objection to that, I have no doubt the manager will come to know of their views and will act accordingly in the future.

Mr. A. Barry

If you leave it to the councillors alone, you will be in trouble. One councillor will say: "This poor widow woman has four or five children and we should not be the cause of putting her out on the road." That sort of thing will frustrate everything we seek to do.

An Leas-Cheann Comhairle

Amendment No. 119 withdrawn?

Mr. Jones

Yes, in the light of the Minister's explanation that this is a minimal period, and can be extended. I take it the extension of the time would fall to be reviewed by the planning authority?

Mr. Blaney

I should think the time of extension would be to a large degree related to the sensible approach of how long it would take to remove the structure and put the place back in its original state.

Mr. Jones

We had this business of the development of land and so on.

Mr. Blaney

In the case of putting the place back in its original state, the idea of specifying a month would be ridiculous.

Mr. Jones

The discussion has been useful from the point of view of getting the intent of the section.

Amendment, by leave, withdrawn.

Mr. Jones

I move amendment No. 120:

In subsection (5), page 26, to delete all words after "authority" in line 61 down to the end of the subsection and substitute: "may apply, in the case of land where the rateable valuation thereof does not exceed £10, to the District Court of the area where the land is situated and in the case of land where the rateable valuation thereof exceeds £10 to the Circuit Court having jurisdiction in the area where the land is situate, for an order requiring the owner to comply with the notice and the court, if satisfied that the owner should comply with the notice, may order the owner of the land to comply with such notice upon such terms as to the court seem just.".

The purpose of this amendment is to provide that a planning authority, before entering upon land to carry out the work specified in the notice, will first apply to the court for an order. This procedure will provide an appeal against the notice served by the planning authority. The appeal can be taken either in the district court or the circuit court, depending on the valuation. Under existing law no man can enter upon another's property unless he has either a court order or a warrant or, being a policeman, he reasonably suspects there is a criminal on the property and that a crime is about to be permitted thereon, or that there is a lunatic on the property. That is one of the oldest statutes on the statute book. It goes back to an Act of Richard II.

The Constitution expressly provides that the dwelling of every citizen shall be inviolate. This section gives power to the planning authority to enter upon property which may be a man's home. The Constitution envisages that as something that should not happen. There is no difference between the powers being sought here and the type of power available in States which are not democratic. Surely the law ought to serve a higher purpose than that envisaged here—the violation of the democratic rights of the individual for the purpose of a Town Planning Act?

The powers required by the planning authority are available to them readily and locally. If the valuation of the land is of the order of £10, every month there functions throughout the country the district court, which is available to the planning authority who may secure there the order they require to enter upon a person's property. If the valuation is more than £10, the circuit court is available to the planning authority for that purpose. To enter upon a person's property and to do certain things without having sought the permission of a court of competent jurisdiction is a power we should be very slow to grant to a local authority when the ordinary legal processes are available.

In many sections of the Bill, we have removed, or proposed to remove, the right of protection in the courts and provide only the right of appeal to the Minister. The Minister may say the latter right is there, although it transpired this morning, in regard to notices served on individuals under this section, there is not even the right of appeal to the Minister. To suggest that a planning authority might enter a person's property, even his home which is inviolable under the Constitution, is unthinkable. I suggest very strongly to the Minister that we, on this side of the House, could not agree to this kind of power being given to the planning authority without the ordinary judicial process of recourse to the courts. If the planning authority decides that it requires this type of power, then they should get this permission from the courts which operate in the area where the land is situated.

The planning authority cannot in any circumstances be put on any higher plane than the individual who might offend and be held accountable for his entry on somebody's property. Even in enforcing the law, certain circumstances must pertain before officers of the law enter on property and to pretend that the planning authority can do what the officers of the law cannot do is something we cannot accept.

Mr. Dillon

I want to put to the Minister that, on reflection, he cannot possibly wish to sustain the proposal in subsection (5). We think, first, in a subsection of this kind, of a property owner erecting a hoarding and being told to take it down and refusing to do so. Or, more likely, he will leave the hoarding to rot away. One pictures flapping and deteriorating posters possibly obstructing the view of the road and certainly disfiguring the landscape. The county manager having asked the owner to remove it, will finally say: "If you do not remove it, I shall get the county council workers to go in on Monday and take it down."

With that picture in mind, one is inclined to assent to the proposition that this is the sensible way to go about it—give the person reasonable time to do it and if not, send in the county council workers and send him a bill for the costs. But it does not stop there and the great danger of these short cuts to an objective is that you may unconsciously perhaps go far beyond where you meant to go. I know a lady in this city who is widowed and when Deputy Barry began to talk about widows, my hackles began to rise. She was a woman into whose house her husband married clann isteach and her family had been living in this small house for generations. She applied to the local authority for permission to start a shop and it was manifest that there was no room in the building to run a shop. That was pointed out to her but she said she would convert the hall into a shop and use the halldoor as the entrance. She did shelve the hall and put a little counter across it and she is now a comfortable woman. She reared a family there. If she had not the right to do that, she would probably have lost her home.

Does anyone here seriously suggest that the city manager of Dublin should have the right under a town plan to say: "That is an area where you should not have a stationer's shop. Dismantle it and put the hall back in the condition it was heretofore. This is a residential area. If you do not, I shall put in the county council workers on Monday to tear down the shelves." I do not believe any Deputy here would say the county manager should have that power. I certainly do not and if the widow woman asked me to come down, I would lend my pitchfork and fight for my constitutional rights to the Supreme Court, if necessary, and I believe I should win. I do not believe any county manager has the right to come in and tear the shelves out of the wall because he has made an order that I cannot rear my family out of the proceeds of the shop because he does not like it.

Mr. A. Barry

But you will not permit a tenant of a local authority to put a shop in his house?

Mr. Dillon

I am not talking about a tenant of a local authority. I am talking about a tenant in this city who converts her premises into what she regards as suitable for an inoffensive occupation and the town planner says: "No, you must not do that." What I say is that before he puts in the corporation workers to pull down the shelves, she should have the right to go to the district court or the circuit court, as appropriate, and make her case. If the court makes an order and says that she is breaking the law and must not have the shop, she is under no greater hardship than any of us. But she has the right to go to the independent tribunal provided by the Constitution to stand between her and the Executive, whether it is the local authority or the Government, and say: "I have certain rights which I claim under the Constitution and I ask the courts to protect me from these people who threaten to go into my home and tear down the shelves."

I know of more cases, and I am sure the Minister who was born and reared in this country, must know of people who set up what might appear, to the highly efficient up-to-date county manager, very inefficient establishments and who have since prospered in them, people who might never have been able to get under way if the only person to make a determination in the matter were the county manager with a right arbitrarily to go in and say: "If you will not listen to my view, I will force it on you and having enforced it, I shall send you the bill."

Let us be realistic. There must be hundreds of people in the country who got on their feet by setting up what many a tidy and efficient local official would regard as an undesirable structure or arrangement. I can think of another woman, the wife of an evicted tenant and when they were down and out, having been thrown out on the side of the road, she put a few tallow candles in the window of a two-roomed dwelling and started a little shop. She gradually built up a very prosperous business which gave abundant employment in subsequent years and reared many a family. But if she had been prevented from doing that by the intervention of an over-zealous official, she and her husband would have been in the workhouse and her family scattered.

I agree that in the growing complexity of the society in which we live, planning legislation is necessary. I admit that. We must face the fact that we live in a changing world but we must not go the length of sweeping away all constitutional rights in order to make town planning expeditious and efficient.

There can be two views about matters of this kind, two views as to what is and what is not infringement. When it comes to the point of giving a planning authority the power to enter one's home or so completely disrupt one's life, surely then the humblest citizen has the right to go to the courts and say: "This is an unreasonable procedure". All we are asking is that before a planning authority goes into one's home, or enters on one's property for the purpose of enforcing an order, they will go to the court and there seek authorisation to do so. That seems to me to be a reasonable condition.

Bear in mind the cranky person, irresponsible and irrational, who resists and says he will not take down what it is proposed to take down and he will not let anyone else do it; in that case the planning authority can go to the court and the crank will have to pay the costs. The unreasonable person will have to face the fact that he is bringing down upon himself not only the enforcement of the order by the authority of the court but the cost of the proceedings in court, plus the cost of the county council going in and doing the work, and the latter can recover from him the cost of doing the work as a simple contract, and the cranky person will have done nothing except exacerbate his own problem. All we are asking is that in regard to the person about whom Deputy Barry spoke——

Mr. A. Barry

The woman who might get £5 for an advertising hoarding in her backyard.

Mr. Dillon

——or set up a little shop, or do any of a variety of things, honestly believing she is right, the planning authority wishing to enter on her premises to disrupt her activities would have the right to go to court. That is all we are asking. Surely that is a reasonable request. If we sweep away that right—I am not suggesting that havoc and mayhem will break out through the land and every defenceless person will be trampled under foot; I do not suggest that for a moment— then we are doing something we ought not to do and we should not enact legislation here that would make the humblest, anonymous person in this State feel that he is being deprived of his constitutional rights.

I think the glory of our society is that in the remotest part of rural Ireland, in the last analysis, the simplest person can ramble up to the district court and say: "Your Honour, I do not know how to make my case, but so-and-so and so-and-so," and the district justice will say: "Come now. If that is the case, the clerk will assist you to bring your business before the court in the proper form," and the litigant will have the feeling that he is protected. I do not doubt that the Minister has had experience on occasion of country people coming to him and asking: "What should I do?", and his saying to that person: "Go to the district court and tell the district justice what they are trying to do to you and you will find, if you are not able to pay a solicitor or do not know how to go about the matter yourself, that he will look after you and see that justice is done."

Is that not a desirable thing? I suggest it is and all I ask is that before you authorise a minor executive to enter a person's home or property, you should clothe, by specific mention in this Bill, that individual with the right, if he feels aggrieved, to go to the district court, but with the knowledge that, if he goes capriciously or for the purpose of obstruction, instead of having the nuisance removed, at no cost if he does it himself, he will be faced with a bill of costs from the court because he will have to pay the costs of the planning authority, plus the cost of removing the structure now removed under the authority of the court. Unless the Minister suggests to me that the country is full of lunatics, I suggest to him the likelihood of this kind of case arising frequently is remote in the extreme.

Bear in mind—Deputy Jones has already more than hinted at this—that if you give a person the power to break into the homes of individuals in this country, without any warrant of authority from the court, you may be doing something that will go eventually to the Supreme Court and prove there to be unconstitutional. I hope it will. I will certainly promote, if I possibly can, a test in the Supreme Court of any such power being claimed.

What is it all about? Why should we seek to authorise any Executive to break into the homes of any citizens of this country without the authority of the courts? You cannot do it if you suspect that there are stolen goods in a house. You must get a search warrant. You cannot do it except under imminent peril to society and the only way of abating that peril is to enter the house in pursuit of the control of the peril. Why then should we give it to a planning authority in order to expedite the carrying out of an order from which, as I understand it, the individual has no right of appeal? I urge most strongly on the Minister that where there is a question of the planning authority entering on a person's premises for the purposes of this section, they should be forbidden to do so unless and until authorised by a court of competent jurisdiction before which the property owner will have the right to make his or her case.

Mr. Blaney

It is conceded by all that planning is both desirable and necessary. Surely planning means control and control for one must also mean control for the other. One cannot refuse permission to the widow in No. 29 South Circular Road, on the basis of planning criteria, to open a shop in the hallway of her house and the following day ignore the fact that another widow living in No. 31 has opened a shop without seeking permission.

Mr. Dillon

That is not the argument.

Mr. Blaney

It seems a dreadful thing to prevent a person earning a livelihood but we must remember we are committed to planning and we are thereby permitted to control. Control for one must also be control for the other. The people we are dealing with here are those who will fail to ask permission knowing that they should. They know they would not get the permission if they sought it. The other people are those who will seek permission and be refused it. They will have observed the law. The breaking of the law is subject to certain penalties under Section 24.

Mr. Dillon

To be enforced by the court.

Mr. Blaney

No matter who enforces it, the fact is it is there. The district courts are not competent to determine the merits of a planning appeal. I do not see why it should be put to them. Their job would be to determine what is the law——

Mr. Dillon

Yes.

Mr. Blaney

——but not the merits of a particular case. It would be the merits of the case that would be at issue rather than the question of whether the local authority had the right to go in. It has been asserted that this has come out of the blue and that we will finish up with a manager deciding that something should be done or that a house should be pulled down. That is an exaggeration, and it is a wrongly-based exaggeration. The local elected representatives will have determined where the shop may or may not be in their overall development plan. The manager will be merely carrying out what they have agreed to. If in the course of his administration the manager has to serve an enforcement notice and carry out the enforcement himself, he is not the person——

General MacEoin

That is where the Minister is slipping.

Mr. Blaney

——who has made the decision. The local authority members will have made the decision. He will be merely carrying out what they wish him to do on behalf of the general community. All this talk about constitutional rights is very fine and all this talk about one hard case, but do not forget that many hard cases could be added together and the result would be that planning control would be thrown out the window. We cannot forget about the rights of the public as a whole in order to pander to a few hard cases that may be trotted out. I could trot them out as frequently as anyone else. If we are to pander to the hard cases, we need not have any control of any kind and ultimately and logically, we get back to the fact that we should not have any laws to restrict anyone from doing anything, where, when and how he wishes to do it. In regard to this question of going to the courts——

Mr. Dillon

Only about entering.

Mr. Blaney

—— this right of entry without recourse to the courts is enacted in several of our local government laws. It is in three different sections of the Act dealing with derelict sites.

Mr. Dillon

You cannot live on a derelict site or it would not be derelict.

Mr. Blaney

Can you not? There are several other local government enactments which give the right of entry. This power we are talking about is a standard power that has been taken and accepted in several enactments. It is not some new, earthshaking, Constitution-breaking, breakthrough on my part in this Bill. It is a standard type of enactment which has gone through the House on several occasions in respect of laws emanating from the Department of Local Government, not to mention any other Department.

Mr. Dillon

With prior court approval.

Mr. Blaney

Deputy Dillon has made a single, isolated hard case plea. Of course, no one knows better than the Leader of the main Opposition that hard cases make very bad law. That is a well-known maxim.

Mr. Dillon

I did not make it just on the hard case. I will make it on the soft case in a moment.

Mr. Blaney

Taking the hard case or the soft case——

Mr. Dillon

I will make it on the soft case just as effectively.

Mr. Blaney

How can you reconcile the person who applies for permission to set up a business, to carry on a trade in a premises in a particular area, and to whom permission is refused by the planning authority, and the appeal is refused by the Minister, and the refusals conform to the overall plan as laid down and accepted and passed by the local elected representatives and their own planning authority, with the person who, knowing there is no hope of getting it—what does he do——

Mr. Dillon

He does not apply.

Mr. Blaney

He does not apply but he goes ahead and opens a shop. He need not be as badly off as the person who sought permission and failed to get it.

Mr. Dillon

Agreed.

Mr. Blaney

Why should that person be allowed to continue——

Mr. Dillon

He should not. An order should be made against him but it should be a court order and not to pull the shop down around his ears.

Mr. Blaney

What is the purpose of going to the courts? He has not got permission.

General MacEoin

You are coming into my house without my consent. You have not that right.

Mr. Blaney

In this case, we have got to the point where the law has been broken.

General MacEoin

That has to be established.

Mr. Dillon

Has that not to be established before you come into my house?

Mr. Blaney

The planning authorities have a register of the permissions granted. They know who has got permission. They know this man has not got permission to open a shop. That is a fact. There is no quibbling about it. No discussion is allowed. This person has opened a shop and the fact is that he has not got permission. If some action is required to abate that shop or business, this enforcement notice follows saying: "You must stop this or change that——

Mr. Dillon

Agreed.

Mr. Blaney

——or take that away and we will give you so much time to do it." It will be a reasonable amount of time. Despite that notice, the person is carrying on his merry way and continuing that which he should never have started without permission. We have now got to the fact that he will not abate that which is an offence. Why should we go to court and say: "We want an order made."

General MacEoin

The Minister is not serious.

Mr. Blaney

The Deputy is not serious. What do you go to court for——

Mr. Dillon

To get authority to come into my house.

Mr. Blaney

That authority is in several enactments——

General MacEoin

That does not matter.

Mr. Blaney

——to which the Deputy has already agreed.

General MacEoin

They are wrong then.

Mr. Blaney

If a person feels that his constitutional rights are taken away from him, this enforcement order will not prevent him from going to the courts. If he thinks this cannot be done under the law, he can go to court to seek an injunction restraining people from doing this job. Surely it is sufficient when we start out on the basis that the person we are dealing with has broken the law and that is a fact. If we had to determine whether he had broken the law or not, that would be a different matter. He has not got permission and that constitutes a breach of the law. We do not need a court to tell us that is a fact. Why should we have to go to court to have the merits of planning determined because planning is a matter of policy and not a matter of law. Matters of law are still open to be determined by the court. Let the court determine such matters and leave this to be operated in a workable way so that this kind of thing will not be allowed to get a grip in the future as it has in the past. Let us have the same for one as for another. Let us not have the people who are prepared to abide by the planning laws suffering while those who are not prepared to abide by them gain by it.

Mr. Dillon

The Minister is missing the point I am making. Any member of the Garda Síochána standing on the Stillorgan road may say I am travelling too fast and he may have radar evidence of an incontrovertible character in his hand that I have travelled too fast. Therefore, I ought to be fined or, if the statute provides it, imprisoned. But that does not give the Garda the right to come up and levy a fine on me or, again, to seize my person and deliver me to the Governor of Mountjoy. He has to prosecute, to go before a court, and describe what I have done. The court will hear me and then, if I am guilty, determine my guilt and appoint the appropriate penalty. The Constitution invests me with certain rights of appeal to courts of superior jurisdiction in order to ensure that justice is done.

I am not arguing that, if the planning authority has said that there are to be no shops in that street and seven residents seek permission and are refused it and comply, the eighth resident who does not seek permission and opens a shop should be kept inviolate. All I am arguing is that, when the planning authority application is directed to the eighth person who has not sought permission and who has set up a shop in defiance of the plan, he should get a notice to cease and desist. I think the time can be as short as a month. At the end of the month he does not cease and desist. Under the proposed subsection, the county manager can arrive with six corporation workers and, as far as I can see, break down the door if the door is closed, unscrew the shelves off the walls, tear out whatever little counter has been erected and tell the person to remove the stock or certainly to cease displaying it for sale.

All I am asking is that before that is done the county manager will go to a court of competent jurisdiction and report the facts, which I admit are facts: (1) that there is a plan controlling this street; (2) that in defiance of the plan, this person has opened a shop; (3) that this person has received a notice warning him that he is in breach of the plan and calling on him to cease and desist within the 30 days; that 30 days have elapsed and he has neither ceased nor desisted and has not given any indication of his intention to conform with the order; and that, in these circumstances, the planning authority asks the permission of the court to go into that person's property to take whatever steps are necessary to give effect to the town plan.

Is that an unreasonable request? The Minister charges me with trying to bolster this argument with hard cases. Quite honestly, I am not. I can imagine a situation where I am erecting a television mast in my garden. The town planning authority say the mast is too high, that there are too many stay wires on it or find some fault with it in any case. If I am a reasonable man, which I hope I am, I imagine that I would meet the appropriate officer of the town planning authority and say: "What is wrong with it and let me put it right?" Supposing I am a crotchety man and I say: "I have got leave to put up a television mast and I shall put up any television mast I like." After remonstrating with him the officer from the town planning authority will say: "I have to serve a notice on you that the mast must be adjusted within 30 days" and I tell him to go to blazes. I want to ask the Minister for Local Government does he think it reasonable that thereupon there should be conferred on the county manager the right to break into my home, force his way into the garden with the county council workers, root up the mast and remove it? Or should there be upon the county manager the obligation of saying: "Very well. I shall have to summon you and get a notice from the district court." I have to appear before the district court and the district justice will make the appropriate order and everything proceeds according to law.

I am making the very opposite of the soft case. I am making the case of a person who is a prominent person in a rural community and who ordinarily expects to be treated as a law-abiding citizen and with the reasonable deference due to him as a citizen of a community. Is that not a reasonable case to make? I do not think the county council employees have the right to break into my house on the order of the county manager who is probably a very junior person to me and who was a minor clerk in the county council when I was a member of the county council 30 years ago.

I advance this argument to the Minister not on the hard case but on the very softest case in which a person of property and local prestige is involved. Now let us state the fact that if we are dealing with a hard case, such a person is bringing upon himself or herself all the additional costs of legal proceedings plus the cost of removal if he acts in a cantankerous way. Take the very soft case with the relatively prominent senior person. His house should not be capriciously entered for the purpose of town planning. He is exposing himself to the humiliation of appearing in the district court of his own district and being told by the district justice in the presence of his neighbours: "You are acting the fool. The planning authority is making a reasonable request to you and you are just defying the law for the purpose of defying the law and I am amazed you should allow yourself to be brought before the court in these circumstances and expose yourself to the humiliation of having an order made authorising the county council workers to do what you yourself should do most gladly when asked by the local authority to do it."

Nobody has argued that the person who does not seek leave he knows he should have sought should be allowed to continue, whereas the six or seven neighbours who did apply for leave and were refused have never embarked upon this activity. Nobody is arguing that for a moment. All that is being argued is that if somebody is in breach of the order and has been notified to stop, before the county council workers break down the door in order to enforce the order, an order from a court of competent jurisdiction will be secured. I am putting it to the House that far from hindering the planning authority the suggestion we now make will greatly strengthen their hand because whether you are a widow woman or a respected neighbour, people do not like to see their neighbours gratuitously insulted in that way.

It creates local illwill to see a respectable person trespassed on in that way. Any of us living in rural Ireland knows that if a poor person or a well-to-do person acts capriciously or unreasonably and is suitably admonished by the court, the subsequent action to vindicate the decision of the court will receive universal support. Far from being a hindrance to the planning authority, our suggestion in fact will probably help to get what I hope will be this exceptional procedure rendered acceptable to 999 people out of 1,000 but I solemnly warn the Minister that if the planning authority is to have the obligation of breaking into people's premises for the purposes of enforcing a planning order, it will create, in my judgment, grave dissatisfaction with the whole planning programme in rural Ireland and I rather imagine the same situation will arise in the city.

I most strenuously urge the Minister that we have proceeded with the discussion on this Bill in a reasonable kind of way and we are not pressing on him so grotesquely an unreasonable suggestion that a person who does not conform to the accepted plan but goes his own sweet way is to remain uninterfered with. That is not the case at all. We are quite prepared to say that if a person is in breach of the accepted plan, it is perfectly reasonable, to serve him with an order. And perfectly reasonable, if he does not comply, to take effective and prompt steps to ensure that the order will be complied with. Our only difference is what shall be the approved steps. We say summon him and let the district court or the circuit court order him to comply with the alternative and if he does not, the planning authority may carry out the work as necessary and he will have to bear the cost. In my judgment, such a procedure will carry with it the consent and approval of the vast majority of our people, but without that protection, the vast majority of people will bitterly resent the exercise of a right, conferred by the Bill as it stands at present, on a county manager to break into any person's house, whether he is the humblest person in the town or the most responsible.

Mr. Clinton

The case made by the Minister apparently is that he is dealing with the law breakers and because of that fact needs this exceptional power in order to deal with them effectively and expeditiously. I submit he is dealing with people who the planning authority or the county manager has decided are law breakers but the courts have not decided they are law breakers. Only this week in County Dublin, a cottage tenant—I do not know whether it is a vested cottage or not but it is immaterial—applied for permission to build a poultry house on his plot. He has been refused because the town planners consider that it is an infringement of amenity in the area. I know the cottages in the area and it is correct to say that the city has stretched fairly adjacent to them but it does not surround them. Here we have a man who cannot supplement his meagre income by having a small poultry house in his cottage plot. Surely he cannot be regarded as a law breaker. I say he is only a law breaker in the eyes of the officials. The elected members of the local authority can do nothing for him. He could also be an extremely poor man and this might be his entire means of livelihood but he has no recourse to the courts and must accept the refusal without question. It is quite unreasonable that that should be written into this legislation. This is a most reasonable amendment and the case for it has been put very forcefully and effectively.

Mr. Blaney

I have been trying to find out what the position is in regard to powers granted and operated over the years and I discover that the Sanitary Services Act, 1948, the Housing Act, 1931 as amended in 1958, the Derelict Sites Act, and the Town Planning Act, 1934—I think there are more but I have not got absolute information about them—all contain what it is suggested here now is an extraordinary power. There have been no dire consequences as a result of this type of power having been given in the Planning Act of 1934, the Housing Act of 1931 or the Sanitary Services Act of 1948. Why then should it suddenly emerge as such a grievous problem here, one which will wipe out the constitutional rights of goodness knows how many people throughout the country?

All this makes for high-sounding talk but it does not make a good case. We have had the experience of three Acts, all dealing with my Department, and no one, at any stage, is on record as indicating that there is any denial of the rights of our people as a result of the operation of the same sort of enactment as we are seeking here. Deputy Clinton has mentioned the erection of Poultry houses on cottage plots. Poultry houses, as a curtilage of a dwelling house, would be an exempted development. Refusal of permission has been cited by Deputy Clinton as putting certain people outside the law. To that I say that the actual refusal of permission does not make a man a law-breaker. It is his continuing to do something for which he has been refused permission that makes him a law-breaker.

On top of that, I cannot for the life of me see why we should be so squeamish in our approach to this matter, where it is essential there should be a proper mentality and proper administration of the principle of town planning, when we have the same type of power in existing legislation without a complaint being voiced. Why should we make it an offence for this sort of thing to be done under Section 34, with a £1,000 penalty and a continuing fine of £12 for each succeeding day on which the unauthorised business is kept in operation? We do not object to that provision at all. Neither do we object to the requirements that lay down certain controls to which all of us will have to conform in one way or another.

If a plan, as outlined by a planning authority, does not allow such development as the law-abiding citizen has sought, the law-abiding citizen will abide by that decision. We then make it a valuable asset for some law-breaker to come into an area where the law-abiding citizen had been refused permission and accepted that. We create a monopoly for the law-breaker to come in the back door and do it without permission. In legislation like this, our job is to ensure that law-breakers do not get an advantage which, to a large degree, would be created by the law-abiding neighbour abiding by the law. Such would be a scandalous situation and would bring to nought all the efforts in regard to planning controls. How can we possibly expect others to abide by the law if the penalty is to be for law-abiding and the reward for the law-breakers?

By allowing access to the court, we give to the person who is breaking the law a way out. Even if there should be dire consequences, or that any part of our law turned out so that somebody expressed a fear about it, are we not here to remedy that if it arises? Everything here points to the submission that we should go on with the Bill as proposed, but if something does happen, the House can change its laws. In between, there are still the courts at all levels to determine whether or not a thing is Constitutional. All this is the strongest argument against making it obligatory on the local authority to go to the courts in every case. The local authority can be and will be forced into the courts if the owner of the property obstructs them or challenges their right to go on to his property. Why then oblige them to go to the courts in cases where there is neither an obstruction nor a challenge made to their right to go in? Why should we send them to the courts when nobody really objects?

Mr. Jones

I should like the Minister and the House to understand that we are opposed to this power for the reasons I gave at the outset. It is because we believe the right of the individual to his home is inviolate. It stems from that. It is because we want the laws to conform to that kind of democracy and not to laws that might be designed for a police State. When the Minister explains what he has in mind, he envisages certain cases in which there have been offences, but I want to remind him again that in this action as it stands, we envisage the type of structure or land development which is in existence under the terms of interim control.

Surely the procedure we propose to the House does not in any way hamper or interfere with town planning? The Minister says that in going to court we do so merely as a policy, but I would ask the Minister if, in fact, under English town planning law as it existed up to recently, there were cases of people carrying out development in accordance with plans of competent designers being refused permission and, when tested in courts, there was a failure to produce evidence to show the type of plan used was quite competent.

The Minister has been citing instances of local government law in which there is the power of entry into these buildings. He equally asserts that the individual could turn round here under this section and obstruct the entry of these people and that then it would be a court case. Why should we invite the citizen to break the law in this way? We on this side of the House cannot see any sense in that at all. We can see no good reason whatsoever why the principle of ordinary democratic observance of the law should not be kept here. All we are asking is that the planning authority will have to get an Order to do these things. Otherwise, the rights of the individual would be in jeopardy in this regard.

We feel strongly on this matter. We are not in any way hampering planning. We do not wish to see anybody who is flouting good planning protected in any way. We have said that there could be and probably will be occasions when there will be divergence of opinion in regard to what has been good development or bad development or on whether the permission granted was complied with in whole or in part. However, the planning authority, having said that an offence had been created, could give the right to an individual to enter on the property of a citizen without the citizen's having had the opportunity of appearing before the court is altogether unreasonable. We could not subscribe in any way to the principle which seems to be enshrined in this section. We cannot in any way agree to the principle underlying it. A simple and ordinary and inexpensive process which the planning authority may use is either the district court or the circuit court.

For a lot of the appeals envisaged under this Bill, the Minister would have to appoint somebody to take evidence or to have an oral hearing of cases. In that case, the Minister would, I assume—or should I assume? —send somebody to the area where the inquiry would be held. We have established courts and they operate every month, in the case of a district court, and on four occasions during the year, at least, in the case of the circuit court, and individuals have been appointed under the Constitution to decide as between citizen and citizen or the State and citizen. As the Minister knows, when cases come before the courts of this country, expert evidence can be produced on one side or the other. Innumerable cases with that type of procedure take place. The interpretation of permissions given constitutes the bulk of that type of case before the courts.

When the citizen appears in court, either the State or the planning authority in this instance can adduce expert evidence if a decision is being challenged to assert that something has been done or is in contravention of any permission. Equally so, the citizen might produce his evidence to rebut the type of evidence advanced by the planning authority. Then it is a question for decision by a justice or a judge. It falls for determination by that competent individual whether or not the planning authority shall have the powers it seeks under this section. It falls to him to say that the planning authority, by reason of this section and without recourse to any judicial process, should have the right to go into the home of a citizen, to alter it, to take it down, to demolish it. That is much too wide a power to give to any official. It is too much that he should have that power, without having it backed by the power given by court order. That is all we seek here.

We are not seeking to obstruct the planning authority in any way. We seek to protect the essential democratic right of the citizen that he will have the protection of the due process of the law in this case.

We make no case for people who have broken the law. If they have broken the law they will stand convicted in the courts. As the Leader of the main Opposition pointed out, they will have the added penalties of the odium of their neighbours and the cost involved in the process of law.

Mr. Blaney

I think Deputy Jones has really put his fingers right down on what is the material interest in this case and that is that in the last analysis, he envisages a determination by a district justice as to what is good or bad planning. That is not the way to get your planning going and to keep it going. I think that that is a wrong approach. It is a way of defeating the whole aims of your planning proposals. In the last analysis, it would nullify to my belief the whole concept of planning control.

There has been this mention of going in and pulling down people's houses, going into their dwellings and sort of rooting them out. If we are dealing with the change of use only —which it would be, to a large degree —say, something being sold from a house which is a dwelling and which should not be used as a business premises, there would be nothing there to pull down. There would not be any question of going in to pull something down in that house. There would be no question of violating the privacy of the house whatsoever. To dwell on that aspect would be to obscure the real problems likely to arise. Take, for instance, somebody who builds something, who erects something new, who rushes it up overnight or builds behind an existing high wall and removes the wall overnight and gets into business in that way when others nearby have been refused facilities. That is the sort of thing we have in mind.

We are not dealing at this stage with the ordinary citizen requiring our sympathy. We are dealing with people who have deliberately broken the laws passed by this House because they would not and did not seek and did not get any permission to do any of these things complained of. Why should we be so terribly careful lest we might tread on the corns of these people? They will not have applied for permission and, therefore, they will not have got it. They will not have exercised their right to look for permission or the right of appeal that would follow from refusal by the planning authority.

This idea of going to the courts sounds grand, but would not be good in actual practice. It would be a useless procedure. A man has broken the law and has not got permission. That is a fact that can be established from the register. For the same type of structure, nobody else would get permission. The register reveals that others have been refused. What do we want to go to the courts for? What purpose does it serve beyond prolonging the agony and making it more awkward to bring this man into line? Unless, of course, we go into a court of law and ask the judge to determine the appeal, determine our planning policy, determine everything. The courts could not possibly do that, even if they wanted to and were competent to do it. They would have no time for anything else. Why should we try to enshrine in the Bill this idea of going to the courts and throwing it open to them to determine what is good and bad planning?

The courts are still there to protect the rights of the citizen, particularly his constitutional rights, and to restrain by injunction if anybody oversteps the line in the enforcement of the law. While that is there, I think there is no danger whatever to the rights of the individual. To take the course suggested in the amendment would be tantamount to saying to the courts: "You are the planning authority." I think that would be daft.

Mr. Dillon

I confidently hope and anticipate that the Minister for Local Government will shortly be the ex-Minister for Local Government.

Mr. Blaney

A nice thought.

Mr. Dillon

He is living in Donegal as an ex-Minister of this State. I urge the Minister to consider this case. Is it right that the county manager in Donegal ought to have the right to arrive one morning, because he has issued a notice to the ex-Minister, a notice under the Planning Act, to enter on his premises with county council workers and to carry out works which the county manager says he is entitled to do and which the ex-Minister for Local Government says he is not? All I am asking is, if that conflict arises and the county manager says the only means he has of vindicating the plan adopted by the planning authority, which he has a statutory duty to enforce, is to set right what has been done on Mr. Blaney's property, that before the county manager enters on his property by force, he will go to the district court and state: "There is a plan. Mr. Blaney has acted in breach of that plan. A statutory notice has been served on him. He has refused to conform with that statutory notice and I now ask authority to enter on his premises against his will and to carry out the works which the plan requires to be carried out."

Mr. Blaney then has the right to appeal to the court and make his case, which may be reasonable or unreasonable. If it is reasonable, the court may say to the county manager: "We think Mr. Blaney is right. We do not think he has acted in violation of your plan. According to your own story, what he has done is not in violation of your plan and you have no right to enter on his premises." Alternatively, the court may say to Mr. Blaney: "It is perfectly clear the county manager has a duty to enforce the plan. He has offered you a chance to comply with the obligation placed on you. You have refused to do so. Now he has the right and the duty to go in and carry out whatever works are necessary. Unless you permit him peaceably to do it, we will give him a warrant to do it and to use such force as may be necessary to give effect to the court's order."

Is that not a reasonable stipulation? The Minister says we are dealing here with a person who has broken the law and asks what is the need to bring the court into the operation. If a man in Molesworth Street hauls off and hits a Guard and knocks him for six, it is manifest to all that that man has broken the law. If we were to accept the Minister's logic, the sensible thing to do would be for the Guards to arrive on the scene, lug off the offender to Mountjoy and say to the Governor: "This man has assaulted a Guard. Keep him." But the Guards are obliged to bring him before the courts, recite the nature of his act, let him make his case and then let justice be done between the executive and the individual.

Of course, to take a man and throw him into Mountjoy is a trespass on his person, but to break into his home is a trespass which is almost as grave, and might be even graver. If you trespass on a man's person, the most you can do is frighten him. If you go into a man's home, root up the place arbitrarily in despite of his protest, frighten his wife, his children and the whole household, that is a most undesirable thing to do. That situation is entitled to be treated with deference and respect. If county council workers can carry out what they consider to be necessary alterations, not only without reference to the head of the house but in defiance of the head of the house, that is a very grave step to take.

I admit that circumstances may arise in which that necessity has to be faced, but it ought to be faced with great deliberation, with the full sanction of the courts of law and in the knowledge that the person on the premises on which entry has to be made has had access to the courts and, having been heard by an independent court, has been ordered either to comply with the law or suffer the law to be carried out in his despite. Surely that is not an unreasonable request? Surely it is a very fundamental and grave breach of principle to lay down, because a county manager is satisfied an individual citizen has failed to comply with the law, that ends the matter, and he wants to have the arbitrary right to enforce it nolens volens?

If this principle be accepted, we will all live in a police State, which I hope will never happen. I freely admit that living in a democracy where freedom is sacrosanct, occasions can arise in which executive action is not as prompt as in a police State but is that not part of the joy of living in a free community? Efficiency is not the only thing that counts. There is also the security, the dignity of the human being and the right to walk the streets unchallenged. These are more precious things and they all depend on the fact that the courts are there to which the greatest or humblest are entitled to have recourse for protection against the Executive, whether it be the local authority or the national Government.

It shocks me that people should be so obscurantist as not to appreciate and understand that. I think the Minister seeks to make the case that if this right is reserved to deal with the very exceptional circumstances in which someone has first committed a breach of the plan of which he is well-informed, and gone to considerable expense to do so—because the Minister speaks of erecting a structure and then suddenly taking down a wall and attempting to engage in some activity prohibited by the plan. That envisages a large outlay of money. He does it in the knowledge that almost inevitably there will come upon him an order to cease and desist. He has already imposed on himself a very large penalty. If, having already suffered that penalty, he refuses to cease and desist, he is faced with the possibility of going to court and incurring the further penalty of bearing the costs of an unsuccessful court case. On top of that, he has to undertake the third penalty of paying the costs of the county council in doing that which under order he was compelled to do, and the necessity for doing which he himself created by his initial activity.

How can anyone imagine that the courts will be clogged up with cases of that kind unless we assume that half the population are out of their minds? I believe that such cases will be rare but that does not make it less necessary that we in Oireachtas Éireann should provide that they be equitably and constitutionally dealt with. I urge on the Minister that what we are seeking to assert here is not the right of the courts to determine whether a plan is good or bad. All we want to assert is the right of the court to determine where circumstances exist which would justify forcible entry on a citizen's property in order to vindicate the purpose of the plan. Surely there is a wide difference between these two purposes. We are not asking for the court to pass judgment on the merits of the plan, to say whether it was well or ill-conceived but we ask that if the planning authority claims the right forcibly to enter on any man's premises they should do so only by virtue of a court order. That seems to be a reasonable and modest requisition and I exhort the Minister to re-assert the reasonable approach with which he has met the discussion of the Bill up to now, and recognise that this is not a subtle and wicked effort to abort his purpose or frustrate his plan.

Mr. Blaney

If we had been dealing with what Deputy Dillon has now dealt with, we would be discussing this in a completely different way. What the Deputy has now brought into the matter is not what is in the amendment. He has isolated the question of forcible entry as distinct from the right of entry. If we get down to that, and that is the only problem, we can and will try to find a way out of it. But the amendment was taking away the right of entry altogether. I wish to retain the right of entry but where force would be necessary, where there would be objection or challenge to that right, then we would try to solve the difficulty in that respect. Until just now, we could not have been discussing that because that is not in the amendment.

I still hold my ground but so long as I preserve the situation that the courts will not be the determining factor as to the merit of the planning of this country and will not be expected to determine on call at any time the good or the ill of one plan or another, that is what I think is really fundamental. When we isolate the case where there is objection or obstruction to entry and where, as the Leader of the main Opposition has mentioned, there is a question of forcible entry, I think there will be no real difficulty in finding a solution.

Mr. Dillon

Then I think we are substantially in agreement.

Mr. Blaney

Yes. The difficulty has been that we have been talking about the amendment which has not actually isolated the forcible entry to the point that has now emerged.

Mr. Dillon

Which amendment?

Mr. Blaney

Amendment No. 120. If we can get it down to that, I think a solution can be found that will satisfy everybody.

Mr. Dillon

Our purpose is to provide for the case where the owner has failed to comply with an order of the local authority and the planning authority says that the work must be carried out and if necessary that they will carry it out. The owner dissents from admitting the agents of the planning authority to do it and we say that before entering the planning authority should get an order from the court authorising them to enter——

Mr. Tully

This section gives the court the right to give that order, does it not?

Mr. Dillon

No.

Mr. Blaney

I cannot go that far with Deputy Dillon. So long as I can keep the planning of the country out of the determination of the courts and beyond the ruling of various district justices and judges, that is the first thing I want and I think it is right from the point of view of the courts themselves. We should do our own work and let them do theirs. I still want to retain the right of entry in the normal cases we may have to deal with under this section. Only where there is objection or obstruction and where force would be necessary to go in on the basis of that right would I seek to find a way of giving that power to the court, merely on the question of law but not on any question of the merits of the actual plan. I think we can meet that situation so as to comply with everybody's wishes. There is very little difference between us at that stage.

Mr. Jones

Even on this matter of entry, we have reservations. I know that another section of the Bill deals with forcible entry and what would happen in such a case, but I suggest that in the circumstances he is envisaging we are contemplating more than what will fall to be regarded as planning for the future so far as this Bill is concerned.

Progress reported; Committee to sit again.